In re Harris, 14-16-00706-CV

541 S.W.3d 322

IN RE COMMITMENT OF Bobby Lee HARRIS

NO. 14-16-00706-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 5, 2017

Eric Kugler, Melinda Fletcher, Amarillo, TX, for Appellee.

John Moncure, Huntsville, TX, for Appellant.

Panel consists of Justices Jamison, Busby, and Jewell.

J. Brett Busby, Justice

The State filed a civil petition to commit appellant Bobby Lee Harris for involuntary treatment and supervision as a sexually violent predator. Tex. Health & Safety Code Ann. §§ 841.001 –.151 (West 2017). The jury found that appellant is a sexually violent predator, and the trial court rendered a final judgment and an order of civil commitment. Appellant appeals, raising three issues. In his first and second issues, appellant argues the evidence at trial was legally and factually insufficient because there was little, if any, evidence that his future acts of sexual violence would be predatory. We conclude the evidence is legally and factually sufficient to support the jury's finding that appellant is predisposed to commit a sexually violent offense such that he becomes a menace to another, which means the evidence is also sufficient that appellant is likely to engage in a predatory act. In his third issue, appellant argues a trial court cannot grant a partial directed verdict on the element that he is a repeat sexually violent offender because there is a conflict between the Texas Rules of Civil Procedure, which provide for directed verdicts, and the Sexually Violent Predators Act, which provides that the jury determines whether the person is a sexually violent predator beyond a reasonable doubt. We conclude that there is no conflict and a trial court may render a partial directed verdict on the element of whether the defendant is a repeat sexually violent offender. We therefore affirm the judgment.

BACKGROUND

A. The Texas Civil Commitment of Sexually Violent Predators Act

In 1999, the Legislature enacted the Civil Commitment of Sexually Violent Predators Act (SVP Act), which provides for the civil commitment of sexually violent predators based on legislative findings that "a small but extremely dangerous group of sexually violent predators exists and that those predators have a behavioral abnormality that is not amenable to traditional mental illness treatment modalities and that makes the predators likely to engage in repeated predatory acts of sexual violence." Tex. Health & Safety Code Ann. § 841.001. The Legislature found it was in the interest of the State to provide a civil commitment procedure for the long-term supervision and treatment of sexually violent predators. Id.

Under the SVP Act, a person is a sexually violent predator (SVP) if the person "(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Id. § 841.003(a). Before the State files suit, a person must be administratively determined to be a sexually violent predator. Id. §§ 841.021–.023; In re Commitment of Bohannan , 388 S.W.3d 296, 298 (Tex. 2012). Once the administrative determination is made, notice is given to an attorney representing the State. See id.

After June 17, 2015, an attorney representing the State may file the civil-commitment proceeding in the court of conviction for the person's most recent sexually violent offense. Tex. Health & Safety Code § 841.041(a). Previously, all SVP cases were filed in Montgomery County, and judgments of civil commitment were appealed to the Beaumont Court of Appeals. See Bohannan , 388 S.W.3d at 299. This is the among the first SVP decisions by our Court in an appeal not heard by transfer from the Beaumont Court of Appeals.

B. Appellant's trial

In September 2015, the State filed suit against appellant in Harris County, seeking a determination that appellant is a sexually violent predator under the SVP Act and subject to civil commitment. The State's expert, Dr. Darrell Turner, evaluated appellant and testified it was his opinion that appellant suffers from a behavioral abnormality making him likely to engage in a predatory act of sexual violence. Dr. Turner testified that appellant has four convictions for aggravated sexual assault of a ten-year-old child. Appellant told Dr. Turner that he believed the ten-year-old child was actually a 20- or 21-year-old woman who received shots in her abdomen that made her look like a ten-year-old child. Dr. Turner explained there were times in his interview of appellant that appellant appeared delusional, but at other times it was difficult to determine whether appellant was delusional or being dishonest. Even if appellant was delusional, Dr. Turner still believed he was suffering from a behavioral abnormality.

Dr. Turner also testified to uncharged sexual offenses by appellant against three other children in the 1990s. Appellant had a long-term sexual relationship with a 14-year-old girl. The other two victims were appellant's four-year-old daughter and the five-year-old daughter of the woman appellant was living with at the time.

Dr. Turner diagnosed appellant with sexual deviance, pedophilia, psychotic disorder not otherwise specified, antisocial personality disorder, and substance abuse. Dr. Turner could not complete the Psychopathy Checklist Revised, which is a checklist designed to identify whether a person has psychopathic traits and to what degree, because he found it difficult to determine whether appellant's statements were psychopathic or delusional. But Dr. Turner testified that he believed, based on his experience and training, appellant was a psychopath.

Dr. Turner testified to appellant's risk of re-offending. Appellant scored a one on the Static-99R, which is an actuarial instrument that measures the risk of re-offending. Although appellant had a low score, Dr. Turner did not believe it accurately reflected appellant's risk because there are variables that are not considered in the Static-99R. Dr. Turner testified appellant had the two biggest risk factors for re-offending: sexual deviance and antisocial personality disorder. Dr. Turner concluded appellant suffers from a behavioral abnormality that makes him likely to engage in a predatory act.

Appellant testified that while he was in prison, he said he needed to see the psychiatric department so he could get out of solitary confinement. He testified he has not been on the prison's psychiatric caseload since 2005. Appellant testified about his confession to the aggravated sexual assault charges. He claimed that his four-year-old daughter and the five-year-old daughter of the woman he was living with had committed sexual offenses against him and were part of a sex ring. He testified he did not know the age of the 14-year-old until around the time of her fifteenth birthday.

The defense also presented an expert witness, Dr. Marisa Mauro. She testified that there is no indication a delusional disorder has a statistical correlation with someone's likelihood of committing a sexual offense.

The State moved for a directed verdict on the element that appellant is a repeat sexually violent offender. Appellant objected, arguing that the jury is required to determine this element beyond a reasonable doubt. The trial court overruled appellant's objection and granted the motion. As a result, the charge focused the jury on the element of whether appellant suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.

The jury found that appellant is a sexually violent predator, and the trial court rendered a final judgment and an order of civil commitment. Appellant filed a motion for new trial, arguing the evidence was legally and factually insufficient and that it was error to grant the motion for directed verdict on the element of whether he is a repeat sexually violent offender. The motion was overruled by operation of law. See Tex. R. Civ. P. 329b(c). This appeal followed.

ANALYSIS

I. The evidence supports the jury's finding of a behavioral abnormality.

Appellant argues in his first and second issues that the evidence is legally and factually insufficient to support the jury's finding beyond a reasonable doubt that appellant has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Specifically, appellant argues, there is very little if any testimony that any acts appellant might commit would be considered "predatory" as defined in Chapter 841.¹ The State responds that whether appellant's future acts of sexual violence would be predatory is not an element the State must prove.

A. Standard of review and applicable law

The commitment of a person as a sexually violent predator is a civil proceeding. In re Commitment of Fisher , 164 S.W.3d 637, 645–53 (Tex. 2005). Because the Act requires the State to prove beyond a reasonable doubt that a person is a sexually violent predator,² however, we review the legal sufficiency of the evidence using the appellate standard of review for criminal cases. In re Commitment of Dever , 521 S.W.3d 84, 86 (Tex. App.—Fort Worth 2017, no pet.) ; In re Commitment of Mullens , 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied) (citing Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). We consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found beyond a reasonable doubt the elements required for commitment. Mullens , 92 S.W.3d at 885. The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Id. at 887.

Although factual sufficiency review has been abandoned in criminal cases, see Brooks v. State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), as an intermediate appellate court with final authority over factual sufficiency challenges in civil cases, we will perform a factual sufficiency review in SVP Act cases when...